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EMPLOYMENT AGREEMENT
AGREEMENT made this February 28, 1996, by and between Plasma-Therm
Inc., a Florida Corporation (herein referred to as "Corporation") and Xxxxxx X.
Xxxxxxx (herein referred to as "Employee").
BACKGROUND OF AGREEMENT
Employee is presently employed by Corporation. Corporation desires to
employ Employee and Employee desires to continue to accept such employment and
both parties are entering into this Agreement to set forth their entire
understanding with respect to such employment.
NOW, THEREFORE, the parties hereto intending to be legally bound
hereby, and in consideration of the mutual covenants herein contained, agree as
follows:
1. EMPLOYMENT
Corporation hereby employs Employee, and Employee hereby
accepts such employment, upon the terms and subject to the conditions herein
set forth.
2. TERM
The term of this agreement shall commence on February 28, 1996
and shall continue for a period of two years until February 28, 1998 (the
"Term"). Corporation has the option to terminate this agreement upon at least
ninety (90) days written notice prior to the end of the term and Employee has
the option.
3. DUTIES
The Employee shall be Vice President of Technology and Chief
Technical Officer and his particular duties and power in such capacity shall be
such as may be determined from time to time by the President of Corporation,
provided, however, such duties and powers shall be consistent with the position
of an executive Employee of a Florida business corporation. In the performance
of his duties the Employer shall make available to the Employee offices,
support as necessary, facilities and amenities commensurate with his position
and duties.
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4. EXTENT OF SERVICES
Employee agrees to devote so much of his time, attention and
energies to the business of the Corporation as shall reasonably be required to
enable him to perform his duties hereunder. Moreover, it is specifically
understood that nothing herein contained shall be deemed to prevent Employee
from engaging in activities in such manner, or investing and managing his
assets in such form or manner, as will not unreasonably interfere with the
services to be rendered by the Employee hereunder, or prevent him from acting
as a director, trustee, officer of, or upon a committee of, any other firm,
trust or corporation where such positions do not unreasonably interfere with
the duties of Employee hereunder.
5. COMPENSATION
The Corporation agrees to pay and Employee agrees to accept as
compensation for all services rendered hereunder:
5.1 a base annual salary, payable in weekly installments, in
the amount of $110,510.00.
5.2 an annual bonus based on 1% of fiscal year net earnings,
to be paid on a quarterly basis and reconciled at year end, not to exceed
$75,000 annually.
5.3 Reimbursement for reasonable car-related expenses
including fuel and oil, but not maintenance or repair items.
6. EXPENSES
The parties recognize that in the course of performing his
duties hereunder, Employee may incur expenses. Corporation agrees to reimburse
Employee upon presentation of vouchers for reasonable expenses incurred by
Employee in the performance of his duties hereunder according to Company
policy.
7. FRINGE BENEFITS
Employee shall be entitled to such fringe benefits paid for or
supplied by the Corporation and shall be further entitled to the following
provisions:
7.1 participation in retirement and Employee benefit plans
such as 401k; education reimbursement; health, dental,
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accident, disability, life, or other group insurance plans; and other plans as
the President of Corporation determines from time to time to make available
generally to the other executive Employees of Corporation.
7.2 The Corporation may elect to pay for the Employee's entire
health insurance premium payments to the extent that this is offered to the
other executive Employees of the Corporation.
7.3 Those plans in which the Employee participates at the time
of the execution hereof shall not be terminated or otherwise discontinued or
amended in a manner having a detrimental effect on the Employee during the term
of this Agreement without the prior written consent of the Employee.
7.3.1 If the insurance policy permits, the Employee may at any
time direct the Corporation in writing to assign the insurance policy or
policies to the Employee in the event of his termination for any reason
whatsoever, whether or not for cause, following which the Employee shall be
fully responsible for payments on the policy or policies and the Corporation's
obligations under the policy or policies shall cease.
8. DEATH OR DISABILITY
In the event Employee dies or becomes physically or mentally
disabled so that he is unable to perform his duties hereunder, this Agreement
shall not terminate and the compensation then payable by Corporation to
Employee pursuant to Section 5 hereof shall continue to be paid as if Employee
were not disabled in any way or had not died, until the end of the then current
term of employment pursuant to Section 2 hereof, provided however, Corporation
shall be entitled to credit against its obligation hereunder the amount of any
and all disability benefits received by Employee provided or paid for by
Corporation, pursuant to Section 7 hereof.
9. TERMINATION
9.1 Notwithstanding anything herein contained to the
contrary, subject to Section 8 hereof, Corporation shall have the right to
terminate this Agreement upon one day's notice for cause, which term shall mean
a material failing by Employee relating to, affecting adversely or likely to
affect adversely his duties hereunder.
9.2 Notwithstanding anything herein contained to the
contrary, subject to Section 8 hereof, Corporation and Employee
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shall have the right to terminate the agreement hereunder without cause.
9.2.1 In the event the Corporation terminates the agreement
without cause, pursuant to 9.2 hereunder, Employee shall receive the full
compensation hereunder for the then remaining term of this Agreement pursuant
to Section 2.
9.2.2 In the event Employee terminates the agreement without
cause, pursuant to 9.2 hereunder, Employee must provide the Corporation with at
least one year's written notice.
9.3 Employee shall have the right to terminate the agreement
hereunder with cause upon not less than 30 days written notice for the
following reasons: a) in the event of a change in control of the Corporation as
described in Section 12, b) in the event of a change in control of the
Corporation as described in Section 12, in conjunction with any of the
following: (i) failure of the Corporation to provide the Employee with any one
or more of the provisions of this agreement, (ii) any change in the position of
Employee set forth in Section 3 without prior written consent of Employee, or,
(iii) any material decrease in the Employee's duties, responsibilities and
authorities, without the prior written consent of the Employee.
9.3.1 In the event of termination for cause by the Employee
pursuant to 9.3, Employee will receive full compensation hereunder for the then
remaining term of this Agreement pursuant to Section 2, including the
continuation of benefits as defined in Section 7 and Section 13 hereof, which
is in addition to compensation pursuant to Section 5 and shall not be reduced
by these amounts, as if this Agreement had not been terminated.
10. COVENANTS BY EMPLOYEE
10.1 Employee hereby agrees that he shall not compete with
Corporation, as defined below, whether directly or indirectly, as a principal,
partner, stockholder, officer, director, Employee, or in any other capacity,
for the following periods of time: (i) if the Corporation terminates employment
without cause as defined in Section 9.2 or if the Employee terminates
employment with cause as defined in Section 9.3, the Employee agrees not to
compete for a period equivalent to the remaining term of this Agreement,
whereby Employee receives full compensation hereunder for such remaining term,
but in any case not less than 45 days from the date of termination of this
contract; or (ii) if the Corporation terminates employment with cause pursuant
to Section 9.1 or if the Employee terminates
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employment without cause, the Employee agrees not to compete for a period of 6
months from the date of termination of this contract.
10.1.1 The Employee agrees that he shall not compete in any
manner whatsoever with the business now or hereafter conducted by Corporation
or any Affiliate (as hereinafter defined); and
10.1.2 The Employee agrees that he shall not solicit or
attempt to solicit, sell, lease or offer to sell or offer to lease, except
on behalf of Corporation or any affiliate, any present or future customer of
Corporation or Affiliate any goods or services competitive to the goods and
services now or hereafter offered for sale or lease by Corporation or any
Affiliate.
10.2 The parties hereto recognize that the covenants
of Employee herein contained are unique and that in the event there is a breach
or threatened breach of such covenants, Corporation shall be entitled, in
addition to any other remedies available to it, to institute and prosecute
proceedings in any court of competent jurisdiction either in law or in equity,
to obtain damages for any breach of covenants or to enforce a specific
performance thereof by Employee, or to enjoin Employee from performing services
or doing any act in breach of such covenants.
10.3 For the purposes of this Agreement, an
"Affiliate" of Corporation shall mean any person, partnership or corporation
which is controlled by, in common control with or controlling Corporation.
10.4 Employee agrees during the Term hereof and after
the termination of employment of Employee for any reason whatsoever the
Employee shall not disclose to any person, firm, partnership or corporation any
information concerning any of the methods of conducting business of Corporation
or any affiliate or any details relating thereto including the names of
suppliers, customers and methods of operation of Corporation or any of its
Affiliates which information is hereby acknowledged to be confidential in
nature. This provision shall not be construed to prevent Employee from using
any knowledge which he possessed at the time he commenced his employment with
corporation or from using any information which is not confidential.
11. INDEMNIFICATION
11.1 If litigation is brought to enforce or interpret any
provision hereof in the event of a change in control
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as described in section 12, the Corporation shall indemnify the Employee for
his reasonable attorney's fees and disbursements incurred in such litigation.
11.2 The Corporation shall further indemnify the Employee
to the extent of the greater of the indemnification provided for in any
agreement, bylaw or charter provision of the Corporation, or any provision
of law, rule or regulation, any of which may be applicable to the Employee or
generally applicable to other executive officers of the Employee's class.
12. CHANGE OF CONTROL
Change in control" as used in this agreement shall refer
to any one or more of the following: (i) the acquisition in any manner
of the beneficial ownership of shares of the Corporation having 20% or more of
the total number of votes that may be cast for the election of one or more
directors of the Corporation by any person, or persons acting as a group within
the meaning of Section 13(d) of the Securities and Exchange Act of 1934, if the
Board has made a determination that such acquisition constitutes or will
constitute control of the Corporation; (ii) any liquidation, dissolution or
sale of all or substantially all of the assets of the Corporation; or (iii) any
action taken following, as a result of, or in connection with, any tender or
exchange, offer, merger or other business combination, sale of assets, proxy
contest or any combination of the foregoing whereby the persons who were the
Directors of the Corporation immediately prior to such action shall cease to
constitute a majority of the Board of the Corporation or any successor to the
Corporation. The term "person" refers to an individual, corporation, company
or other entity.
13. PAID TIME OFF
Employee shall be entitled to take time off at such times
as shall reasonably be requested by Employee and approved by Corporation
in accordance with Company policy. Paid time off over specified amounts not
used per annum is "cashed out" or forfeited according to Company policy. In
the event of termination without cause by Corporation or by Employee, or with
cause by Employee, Employee will receive cash equivalent of paid time off not
yet taken in accordance with Company policy.
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14. MISCELLANEOUS PROVISIONS
14.1 NOTICES
Any notice required or permitted to be given under this
Agreement shall be in writing, and shall be deemed to have been given
when delivered personally or sent by registered or certified mail,
postage prepaid, addressed as follows:
14.1.1 If to Corporation:
Xxxxx X. XxXxxxxxx, VP of Administration
Plasma-Therm, Inc.
0000 Xxxxxxxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
14.1.2 If to Employee:
Xxxxxx. X. Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
The designation of the person to be so notified or the
address of such person for the purposes of such notice may be changed from
time to time by a similar notice to be effective ten (10) days after such
changed designation is supplied.
14.2 SITUS
This Agreement shall be governed by and construed in
accordance with the applicable laws of the State of Florida.
14.3 ENTIRE AGREEMENT
This Agreement constitutes the full and
complete understanding and agreement of the parties and supersedes all prior
understandings and agreements, and may not be modified or amended orally, but
only by an agreement in writing, signed by the party against whom enforcement
of any waiver, change, modification, extension or discharge is sought.
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14.4 BINDING EFFECT
This Agreement shall be binding upon and inure to the
benefit of the Corporation, its successors and assigns, and Employee, his
heirs and personal representatives.
IN WITNESS WHEREOF, the parties have executed
this Agreement the day and year first above written.
FOR PLASMA-THERM, INC.
Xxxxxx X. Xxxxxxxxx, CEO and
Chairman of the Board
EMPLOYEE
Xxxxxx X. Xxxxxxx
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